The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHELLE R. MATTOX, DOCKET NUMBER
Appellant, DA-0845-18-0070-I-1
v.
OFFICE OF PERSONNEL DATE: March 26, 2024
MANAGEMENT,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Michelle R. Mattox , Stilwell, Oklahoma, pro se.
Michael Shipley , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision that
affirmed the November 7, 2017 reconsideration decision by the Office of
Personnel Management (OPM), which found that she received an overpayment of
$9,456.42 in Federal Employees’ Retirement System (FERS) annuity benefits.
For the reasons discussed below, we GRANT the appellant’s petition, VACATE
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
the initial decision, and REMAND the case to OPM to recalculate the amount of
the overpayment, if any, and issue a new reconsideration decision consistent with
this Remand Order.
BACKGROUND
On November 4, 2013, the appellant, who was then an employee of the
Department of Veterans Affairs (DVA), submitted an application for disability
retirement under FERS. Initial Appeal File (IAF), Tab 14 at 37-45. By letter
dated September 15, 2014, OPM informed the appellant that her application had
been approved. Id. at 58. The appellant was separated from the DVA on
September 19, 2014, and shortly thereafter OPM began providing interim pay
based on a starting date of November 1, 2013. Id. at 4. On December 2, 2014,
OPM authorized a regular annuity retroactive to August 27, 2014, based on a last
day of pay (LDOP) of August 26, 2014. 2 Id.; see 5 C.F.R. § 844.301 (providing
that a FERS disability annuity commences on the day after the employee
separates or the day after pay ceases and the employee meets the requirements for
a disability annuity).
Subsequently, OPM determined that the appellant had received an
overpayment of $11,696.71 due to the discrepancy between the interim payments
she had received for the period from November 1, 2013, to November 30, 2014,
and the annuity she actually was due for the period from August 27 to
November 30, 2014. IAF, Tab 14 at 21-22. On December 7, 2014, OPM
informed the appellant of the alleged overpayment. Mattox v. Office of Personnel
Management, MSPB Docket No. DA-0845-15-0449-I-1, Final Order (Mar. 9,
2016). OPM affirmed its calculation in a June 10, 2015 reconsideration decision,
and the appellant filed a timely appeal with the Board. Id. While that appeal was
2
The regular annuity was reduced due to the appellant’s receipt of Social Security
disability benefits beginning February 1, 2014. IAF, Tab 14 at 4, 25; see 5 U.S.C.
§ 8452(a).
3
pending, OPM rescinded its June 10, 2015 decision, and the Board dismissed the
appeal for lack of jurisdiction. Id.
On February 16, 2017, OPM notified the appellant that it had received
information from DVA that her LDOP had been changed to May 19, 2014. IAF,
Tab 14 at 14. OPM indicated that it had adjusted the starting date and amount of
her annuity to match the revised LDOP and calculated that an overpayment of
$9,456.42 had accrued from May 20, 2014, to January 30, 2017. 3 Id. at 14-15.
OPM proposed to collect that amount in 36 installments of $262.67, beginning
May 1, 2017, and a final installment of $0.30. Id. at 15. The appellant submitted
a request for reconsideration in which she asserted that OPM had based its
calculation on an incorrect LDOP. Id. at 11, 13. She also requested a “waiver”
of recovery, though it appears her intent was to dispute the existence and amount
of the overpayment. Id.
On November 6, 2017, OPM issued a second reconsideration decision,
reaffirming its calculation that the appellant had been overpaid $9,456.42. Id.
at 6. Regarding the LDOP, OPM stated that it had contacted an individual (S.M.)
in the DVA payroll office, who informed OPM of the following: that the
appellant was last at work on December 20, 2013; that she entered leave without
pay (LWOP) status; that while she was in LWOP she received donated leave, and
thus an additional paycheck; and that based on the receipt of donated leave her
LDOP was May 19, 2014. Id. at 8, 10. OPM further found that, while the
appellant was not at fault for the overpayment, she was not entitled to a waiver of
recovery. Id. at 7-8. OPM indicated it would collect the overpayment in
36 installments of $262.67, beginning February 1, 2018, and a final installment of
$0.30. Id. at 15.
3
The alleged overpayment appears to have actually accrued during the period between
November 1, 2013, and May 19, 2014. OPM’s computation sheet indicates that,
notwithstanding a reduction in the appellant’s monthly annuity, she was underpaid
$1,940.29 in gross annuity benefits between May 20, 2014, and January 30, 2017,
apparently due to the change in LDOP. IAF, Tab 14.
4
This appeal followed. IAF, Tab 1. The appellant argued, among other
things, that OPM had relied on an incorrect LDOP and that her bank records
showed that a January 17, 2014 deposit from Defense Finance and Accounting
Services (DFAS) was the last payment she received from her employment at
DVA. IAF, Tab 1 at 5, Tab 19 at 5, 35; Hearing Compact Disc (HCD) (testimony
of the appellant). She explained that subsequent payments from DFAS were for
her husband, who was also a Federal employee. IAF, Tab 19 at 5, 26-27, 34-35,
Tab 26 at 4-9; HCD (testimony of the appellant). In support of its position, OPM
provided a handwritten Report of Contact, dated October 25, 2017, describing a
telephone conversation in which S.M. informed the inquiring OPM employee that
the appellant received donated leave resulting in an LDOP of May 19, 2014. IAF,
Tab 14 at 10. OPM also provided an undated form recording an inquiry to DFAS,
which also indicated that May 19, 2014, was the appellant’s LDOP. Id. at 23.
Based on her review of the record, the administrative judge concluded that
May 19, 2014, was the correct LDOP and that OPM had established the existence
and amount of the overpayment. IAF, Tab 28, Initial Decision (ID) at 4-7. She
further found that the appellant had not shown that she was entitled to a waiver of
recovery or an adjustment to the collection schedule. ID at 7-10. Finally, she
found that the appellant failed to establish her claims that OPM committed
harmful procedural error, denied her due process, and retaliated against her for
her previous Board appeal. ID at 10-14. Accordingly, the administrative judge
affirmed OPM’s reconsideration decision. ID at 1, 14.
In her petition for review, the appellant states that on March 23, 2018, she
contacted S.M., the same individual referred to in OPM’s report of contact.
Petition for Review (PFR) File, Tab 1 at 3. According to the appellant’s
statement, S.M. indicated that she entered LWOP status on December 12, 2013,
and remained in LWOP throughout the following year until her separation on
December 19, 2014. Id. The appellant also provides a partially cropped printout
5
labeled “Separated Employee Information,” indicating the appellant’s daily leave
status for a period ranging from December 2013 to September 2014. 4 Id. at 4-9.
In its response, the agency asserts in general terms that the appellant’s
petition does not meet the criteria for review under 5 C.F.R. § 1201.115. PFR
File, Tab 4. In reply, the appellant argues that her newly submitted evidence
shows she was not receiving pay in May 2014. PFR File, Tab 5.
ANALYSIS
In an overpayment case, OPM bears the burden of proving the existence
and amount of the alleged overpayment by preponderant evidence. 5 Vojas v.
Office of Personnel Management, 115 M.S.P.R. 502, ¶ 10 (2011); see 5 C.F.R.
§ 845.307(a). Here, as discussed above, the existence and amount of the alleged
overpayment turns on the starting date of the appellant’s entitlement to an
annuity, which in turn depends on her LDOP. See 5 C.F.R. § 844.301. Thus,
contrary to the initial decision, ID at 4-6, the burden of establishing the correct
LDOP lies with OPM, not the appellant.
In support of its position that the appellant’s LDOP was May 19, 2014, the
agency relies on unsworn hearsay of unknown degree. IAF, Tab 14 at 10, 23.
Even if we were to limit our consideration to the record below, it is doubtful
whether the agency’s evidence regarding the LDOP is sufficiently probative to
4
More than a year after the close of the record on petition for review the appellant filed
a motion seeking to submit an additional pleading, which she asserts is “based on recent
events by OPM,” and will show why she lost her insurance due to the current appeal.
PFR File, Tab 10. We deny this motion because the appellant has not described the
nature of and need for the pleading. 5 C.F.R. § 1201.114(a)(5). To the extent that the
pleading is relevant to the issues on remand, the appellant may submit it in that
proceeding consistent with the Board’s regulations and the administrative judge’s
instructions.
5
Preponderant evidence is the degree of relevant evidence that a reasonable person,
considering the record as a whole, would accept as sufficient to find that a contested
fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
6
outweigh the appellant’s live testimony, which is also consistent with her bank
records. 6
In any event, the appellant has now provided documentary evidence
speaking directly to her pay status during the relevant time period. 7 PFR File,
Tab 1 at 4-9. While the exact dates of the month appear to have been
inadvertently cropped, the document indicates that the appellant entered LWOP
status in mid-December 2013, following several days of annual leave, 8 and
remained in LWOP status through her separation in September 2014. Id. Based
on this information, it appears the appellant’s LDOP did not occur in May 2014,
but rather at some point in December 2013. We discern no reason to doubt the
authenticity of the document, which is consistent with her statements, sworn
under penalty of perjury, concerning her March 23, 2018 contact with S.M. Id.
at 3. Under these circumstances, we find that OPM has not established the
existence and amount of the overpayment by preponderant evidence, and we
therefore do not sustain its reconsideration decision.
Based on the record before us, we are unable to determine with certainty
whether the appellant actually received an overpayment and, if so, the amount of
6
The administrative judge noted that a June 6, 2014 deposit from DFAS in the amount
of $232.32 was consistent with OPM’s contention that the appellant received donated
leave the previous month. ID at 5; IAF, Tab 26 at 7. However, the bank records are
also consistent with the appellant’s explanation that the payment was reimbursement for
her husband’s travel expenses. HCD (testimony of the appellant). While the appellant
did not provide additional evidence to support her testimony on that point, the burden of
proof lies with OPM, as discussed above. Moreover, even if the deposit did represent
payment to the appellant for donated leave, it is possible that at some point thereafter
DVA retroactively shifted the donated leave to an earlier date, thereby altering in turn
the appellant’s LDOP, the starting date of her entitlement to disability retirement
benefits, and the amount of the overpayment (if any). See King v. Office of Personnel
Management, 31 M.S.P.R. 679, 681 (1986).
7
Regardless of whether the evidence was unavailable, despite the appellant’s due
diligence, before the close of the record below, the Board reserves the authority to
consider any issue before it. 5 C.F.R. § 1201.115(e).
8
The annual leave recorded on three dates consists of consecutive partial days of
varying length, which is consistent with the appellant’s assertion that her last donated
leave occurred in December 2013. PFR File, Tab 1 at 4; IAF, Tab 1 at 5.
7
that overpayment. Accordingly, we remand the matter to OPM for a
determination of the appellant’s correct LDOP, recalculation of the overpayment,
if any, and issuance of a new reconsideration decision.
ORDER
On remand, OPM shall recalculate the FERS annuity benefit to which the
appellant is entitled and issue a new reconsideration decision, consistent with this
Remand Order, regarding the existence and amount of any overpayment. The
new reconsideration decision must provide a detailed, consistent, and readily
understandable explanation of OPM’s calculations. See Nichol v. Office of
Personnel Management, 105 M.S.P.R. 201, ¶ 20 (2007). OPM shall issue the new
reconsideration decision within 60 days of the date of this Order and advise the
appellant of her right to file an appeal with the Board if she disagrees with that
new decision. Id., ¶ 21.
We further ORDER OPM to tell the appellant promptly in writing when it
believes it has fully carried out the Board’s Order and of the actions it has taken
to carry out the Board’s Order. We ORDER the appellant to provide all necessary
information OPM requests to help it carry out the Board’s Order. The appellant,
if not notified, should ask OPM about its progress. See 5 C.F.R. § 1201.181(b).
No later than 30 days after OPM tells the appellant that it has fully carried
out the Board’s Order, the appellant may file a petition for enforcement with the
office that issued the initial decision on this appeal if the appellant believes that
OPM did not fully carry out the Board’s Order. The petition should contain
specific reasons why the appellant believes that OPM has not fully carried out the
8
Board’s Order, and should include the dates and results of any communications
with OPM. 5 C.F.R. § 1201.182(a).
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.